Citation Nr: 0842265
Decision Date: 12/09/08 Archive Date: 12/17/08
DOCKET NO. 06-07 875 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
What evaluation is warranted from August 25, 2004 for post-
traumatic stress disorder (PTSD)?
ATTORNEY FOR THE BOARD
B.B. Ogilvie, Associate Counsel
INTRODUCTION
The veteran had active duty service from March 1959 to
December 1978.
This matter comes before the Board of Veterans' Appeals
(Board) on an appeal from June 2005 and September 2006 rating
decisions by the Winston-Salem, North Carolina, Regional
Office (RO) of the Department of Veterans Affairs (VA). In
June 2005, the RO granted the veteran's claim for service
connection and assigned a 30 percent evaluation, effective
August 25, 2004. The veteran appealed. In a September 2006
rating decision, the RO increased his rating to 70 percent,
effective August 25, 2004. The RO also granted entitlement
to individual unemployability, effective August 25, 2004.
The veteran appeals the PTSD rating, requesting a 100 percent
schedular evaluation.
FINDINGS OF FACT
During the entire appellate term post traumatic stress
disorder is marked by total occupational and social
impairment.
CONCLUSION OF LAW
Since August 25, 2004, the veteran's PTSD has met the
criteria for an evaluation of 100 percent. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.130,
Diagnostic Code 9411 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In
this case, the Board is granting in full the benefit sought
on appeal. Accordingly, assuming, without deciding, that any
error was committed with respect to either the duty to notify
or the duty to assist, such error was harmless and will not
be further discussed.
Analysis
The veteran contends that PTSD should be rated 100 percent
disabling from August 25, 2004. The Board agrees.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities
(Rating Schedule). Ratings are based on the average
impairment of earning capacity. Individual disabilities are
assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1 (2008). Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. Francisco v. Brown, 7 Vet. App.
55, 58 (1994). Multiple (staged) ratings may be assigned for
different periods of time during the pendency of the appeal.
Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings
are appropriate in any increased-rating claim in which
distinct time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).
The analysis in this decision is undertaken with
consideration of the possibility that different ratings may
be warranted for different time periods.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
A 70 percent rating for PTSD requires occupational and social
impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work like
setting); inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130.
A 100 percent evaluation requires total occupational and
social impairment, due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform the activities of daily living (including maintenance
of minimal personal hygiene); disorientation to time or
place; memory loss for names of close relatives, own
occupation, or own name. Id.
The American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-
IV), states that a global assessment of functioning (GAF)
score of between 31 and 40 denotes behavior considerably
influenced by delusions or hallucinations or serious
impairment in communications or judgment or an inability to
function in almost all areas. A GAF score of 41 and 50
reflects the presence of serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job) and/or
some impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable
to work). A GAF score between 51 and 60 indicates that the
veteran has moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co- workers).
See 38 C.F.R. § 4.130. VA's Rating Schedule employs
nomenclature based upon the DSM-IV, which includes the GAF
score scale.
The record shows that the veteran clearly suffers from total
occupational and social impairment. In a September 2006
addendum to a July 2006 examination, a VA psychologist
diagnosed the veteran with PTSD and depression, and opined,
"[t]he veteran is extremely guarded, very irritable, is
having irritability daily, experiencing auditory
hallucinations . . . has no friends . . . socially isolated .
. . having constant suicidal and homicidal ideation, and is
only getting three to four hours of sleep currently." She
further noted, "[a]ll of these symptoms cause serious
functional impairment in his ability to maintain physical or
sedentary employment at the present time." The depression
was specifically associated with the service connected post
traumatic stress disorder.
The veteran's private psychiatrist, John Lindgren, M.D.,
diagnosed the veteran with chronic PTSD, and assigned GAF
scores of 30 and 35, denoting an inability to function in
almost all areas. See July 2004 and August 2007 letters
respectively. Dr. Lindgren specifically noted in July 2004
that "[b]ecause of this service-connected post-traumatic
stress disorder, [the veteran] is severely compromised in his
ability to sustain social relationships. He is also severely
compromised in his ability to sustain work relationships.
Therefore, [he is] permanently and totally disabled and
unemployable."
The veteran's other medical records in the claims file
support these opinions, to varying degrees. See May 2005 VA
examination (describing moderate symptoms of PTSD with
moderately severe impairment of psychosocial functioning, and
assigning a GAF score of 53); December 2005 VA examination
(noting depression, nightmares, poor sleep, isolation, and
assigning a GAF score of 45); July 2006 VA examination
(describing homicidal and suicidal thoughts, difficulty
driving, auditory hallucinations, isolation, with a GAF score
of 45); August 2007 letter from private psychiatrist
(assigning a GAF score of 35; PTSD marked by nightmares,
panic attacks, intrusive thoughts, infrequent socialization,
auditory and visual hallucinations, and crying spells).
In deciding this appeal, the Board must weigh the evidence
and decide where to give credit and where to withhold the
same and, in so doing, accept certain medical opinions over
others. Schoolman v. West, 12 Vet. App. 307, 310-11. The
Board is also mindful that it cannot make its own independent
medical determination, and that there must be plausible
reasons for favoring one medical opinion over another. Evans
v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the
opinion of one competent medical expert over that of another,
provided the reasons therefor are stated. Winsett v. West,
11 Vet. App. 420, 424-25 (1998). Further, while the Board is
not free to ignore the opinion of a treating physician,
neither is it required to accord it substantial weight. See
generally Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993).
Courts have repeatedly declined to adopt a "treating
physician rule," which would give preference, i.e.,
additional evidentiary weight, to this type of evidence. See
White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, VA shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102
(2008); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990). To deny a claim on its merits, the evidence must
preponderate against the claim. Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Although one VA examiner classified the veteran's symptoms as
moderate, the preponderance of the evidence shows that the
appellant suffers from symptoms that more nearly approximate
an evaluation of 100 percent for PTSD, especially considering
the veteran has been considered totally disabled and
unemployable due to these symptoms. See July 2004 letter
from private psychiatrist, September 2006 VA examiner's
addendum, and August 2007 letter from private psychiatrist.
The veteran's claim is granted.
ORDER
Since August 25, 2004, a 100 percent evaluation is warranted
for PTSD, subject to the controlling regulations applicable
to the payment of monetary benefits.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs